Where 'O Where Art Thou - The Mystery of the Disappearing Civil Jury Trial

Long before the coronavirus caused a world wide crisis that shut down courthouses, our civil jury trials had been slowly disappearing.

Corporate America discovered that forced arbitration clauses could be used to try to wipe out the right to a jury trial in everything ranging from consumer actions to sexual assaults in the workplace to mass transit disasters when trains derail because of admitted fault by the company.

Insurance companies used super lobby groups to push caps on damages and immunity bills through state and federal legislatures. And to wage public misinformation campaigns - vilifying the civil justice system until the American People assumed the lies were facts.

With most plaintiff firms being solo or small practices, the risk of going to trial against all these odds has become increasingly daunting. Some states like Washington have enacted arbitration programs where smaller personal injury cases can be tried in an informal hearing before an Arbitrator - usually an attorney or retired judge. While this is more cost effective and less risky, it also means thatcases are not being tried before a community of peers as was designed by our constitution. It means that many lawyers never learn how to actually try a case.

At the other end of the spectrum, it is common for large medical negligence cases to be tried before a retired judge - again with no jury. This process is not forced on plaintiff attorneys - it is voluntary.

So while big business and insurance companies are to blame for most of this - us attorneys are to blame for the rest.

Just because it is easier, cheaper, less risky to go through arbitration - doesn’t mean it is the right thing to do. Our Constitutional 7th Amendment right to trial by jury is precious. We are not honoring and guarding it by allowing the big guys to win or by trying to bypass it.

Part 1 of 2.

Photo: my last jury trial